3. RANK OF POSSESSION :

The tracing of title involves a detailed investigation into vesting and divesting

facts. In view of the Limitation Act, 1963, the limitation for recovery of possession

is 12 years from the date the possession becomes adverse to the owner.1 When exactly the possession becomes adverse is purely a question of fact.2 Permissive possession or mediate possession however long cannot operate as adverse.3

Likewise, co-owners and the co-parceners cannot plead adverse possession against the other co-parceners or co-owners in the absence of clear evidence of ouster.4

The Law does not permit any person, including owner, to take law into his own hands and take possession even from a trespasser. The possession must be recovered only in accordance with the procedure established by Law.5 Any person illegally dispossessed may recover possession by way of a summary suit for possession, without even going into the question of title. The title in such cases is totally irrelevant.6 Any person in possession is entitled to protect the same against any one, except the true owner.7 Therefore, even where the possession is sought to be recovered on the basis of the title, the person who is having better title is entitled for decree. The proof of absolute title is not necessary in all cases. These principles and remedies have led to the concept of Possessory Title.8

1. Art. 65 of the Limitation Act.

2. Tajibai v. Hasan Khan, AIR 1987 MP 219.

3. Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591 : AIR 1995 SC 73; see also Roop Singh v. Ram Singh, AIR 2000 SC 1485.

4. Roop Singh v. Ram Singh, AIR 2000 SC 1485; see also Thakur Kishan Singh v. Arvind Kumar, AIR 1995 SC 73.

5. Sec. 5 of the Specific Relief Act, Rama Gowda v. M. Varadappa Naidu, AIR 2004 SC 4609.

6. Sec. 6 of the Specific Relief Act, Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620.

7. Somnath v. Dr. S.P. Raju, AIR 1970 SC 846.

8. Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165; Mariumbi Aslamkhan v. Vithoba Yeshwanta, AIR 1970 Bom. 405.

Possession is prima facie evidence of title.1 The possession is always taken as nine points in Law. In fact, the genesis of title is the established possession, which is recognised by the State. The recognition by the State of such rights for the purpose of revenue assessment and collection has made the person in possession of the land, a Pattadar/Khatadar. Throughout the ages, the tiller who re-claimed the land and brought into cultivation was recognised as owner and he could not be evicted from the land so long as he was paying the revenue to the State. Such ownership was heritable and transferable. Therefore, the State was not construed as the absolute owner and what all it had was the right to collect the revenue. It

was this right to collect revenue, which was farmed out to the intermediaries by way of permanent settlement constituting the Zamindari system. However, on account of lack of understanding with the Indian land tenures and on account of the manor system prevalent in Europe, the British officers treated these revenue farmers as landholders. Unfortunately, the Zamindars though only revenue farmers, were pampered by the British Rulers as they always acted as reactionaries to any kind of revolt from the farmers against the extraction of the disproportionate land revenue by the colonial rulers. In fact, though Sir Thomas Munroe as Governor of Madras and in the later years, the British Capitalists opposed the continuance of these intermediaries, the British administration continued them for the purpose of protecting their colonial interests.2 Till the Estate Lands Act was enacted, the Zamindars exercised unfettered power to evict the tiller and induct the person of their choice. Even after the said Act, the Zamindar was treated as a landholder and the position of the actual cultivator who tilled the land since ages as owner was reduced to that of a tenant. Throughout the freedom struggle, the nationalists pleaded for abolition of the Zamindari system and for grant of ryotwari pattas to the actual tillers.

1. Sec. 110 of the Evidence Act, Parsinni v. Sukhi, (1993) 4 SCC 375.

2. See, The Economic History of India, Vol. I Chapters VIII & IX. by Romesh Dutto,, The Cambridge Economic History of India, Vol.II, by Dharma Kumar, Essays on Medieval Indian History, Edition 2003, by Satish Chandra., Essays in Modern Indian Economic History, Edition – 1987, by Sabyasachi Bhattacharya.

Irrespective of the land tenures, it is possession, which became the source of title in the Common Law and this is the essential difference between the Roman Law and the English Law (Common Law). The Roman Law made a clear-cut division between dominium and possession, much clearer than is the case in English Law. The Romans began with a technical concept of dominium as the absolute right to a thing, possession denoting rather a mere physical control, which had, as such no legal consequences in early law. The English Law on the contrary, reached the concept of the ownership as an absolute right through development in the Law of Possession. He was the owner, who could prove a better right to possession than any one else.1

1. Paton : Textbook of Jurisprudence, Page 466.

Under Roman Law, there can be, at any point of time only one title from

which all other titles must be traced and under this system no new title

independent of old title can be acquired except by divesting the previous owner of

his title. On the other hand, the fact that in English Law, the plaintiff needs only to

prove a better title than that of the defendant, implies the existence of someone,

who has the best possible right to possess and who is therefore the true owner.

Further, under English Law, a thing may be owned by two or more persons at the

same time. Much more important is the way in which the rights of the ownership

can be split up between several persons on temporal plane. Thus, under English

Law, multiple or several ownership is perfectly feasible. Thus, a building can be

owned without owning the land and different floors can be owned by different

persons. The same land can be held concurrently by different persons in different capacities. When we speak of land, we mean all such rights and interests in the land.1

1. See, Law of Flats, Apartments and Buildings, 5 Edition, by the same Author page 4.

These principles of English Law have been incorporated in our statutes and

have been applied by the Courts, since the British rule came into existence.1 In fact, there is a presumption of ownership in favour of a person in respect of a thing, which is shown to be in his possession.2

1. See Park View Enterprises v. State, AIR 1990 Mad 250 and N.S. Ramachandra Raju v. Joint Sub-Registrar, 1991 (1) An.WR 489.

2. Section 110 of the Indian Evidence Act.

Above all, Possession has lot of bearing on law and order. It reflects reality. Possession and actual use of land alone shall become the basis for our future planning, lest the planning goes awry. The power subsidy management, ground water regulation etc., is impossible with proper data. Greater care is required in identifying or recognising or recording possession and it should be evaluated legally.

In view of the importance of possession, all the evidence as to the possession assumed significance like revenue records, mutation registers, property tax receipts, land revenue receipts, settlement and survey records, assessment registers, electricity charges receipts, water charges receipts, land line telephone bills, etc. None of them confer title, but they are evidence of established possession which will support the case of adverse possession set up by the defendant and may result in the divesting of title of the real owner.